Judicial politics in authoritarian regimes
University of Toronto Law Journal , Volume 59 - Issue 3 p. 405- 416
This review article draws out some of the major jurisprudential lessons that can be learned from a series of case studies of judicial politics in authoritarian regimes. Such regimes need to portray themselves as respectful of the rule of law to prolong their grip on power; they therefore tolerate independent courts, because an independent judiciary is emblematic of a commitment to the rule of law. However, the regime must contend with an unintended side effect of independent courts: judges may use their independence to check the regime, limiting its power. Authoritarian regimes will thus employ strategies to contain judicial power, producing a dialectic of empowerment and constraint with respect to courts. Among the lessons highlighted is that attempts by authoritarian regimes to contain courts strain formal rule of law conditions (conditions requiring, inter alia, that laws comprise rules that are clear, non-contradictory, stable, and generally prospective, and that official action match declared rule), suggesting that the formal conception of the rule of law imposes substantive limits on arbitrary power; and that the dialectic of empowerment and constraint exhibits a problem of domination with respect to courts, as part of a larger problem of domination of legal subjects.